NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0919n.06
No. 14-5337 FILED
Dec 12, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
ALICE M. SULLIVAN, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE WESTERN
COMMISSIONER OF SOCIAL SECURITY, )
DISTRICT OF KENTUCKY
)
Defendant-Appellee. )
)
)
BEFORE: COLE, Chief Judge; GRIFFIN, Circuit Judge; and CARR, District Judge.*
GRIFFIN, Circuit Judge.
Alice M. Sullivan received an adverse decision by an Administrative Law Judge (ALJ)
denying her application for Social Security Disability Insurance Benefits (DIB). The Appeals
Counsel affirmed the ALJ’s decision, as did the district court. Sullivan now appeals to this court.
For the reasons set forth below, we affirm.
I.
First, Sullivan claims that the “substantial evidence” standard used by Article III courts to
review decisions of ALJs in DIB cases, see 42 U.S.C. § 405(g), is unconstitutional. Specifically,
Sullivan claims that because it is more difficult for poor people than for affluent people to obtain
the medial records necessary to establish a disability claim, the standard “imposes different
*
The Honorable James G. Carr, Senior United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 14-5337, Sullivan v. Comm’r of Soc. Sec.
burdens on the poor versus the rich” and thus unconstitutionally discriminates on the basis of
economic status. This claim receives its own section of Sullivan’s brief, but persists throughout
the other sections of the brief as well. Although Sullivan does not specify which provision of the
constitution the substantial evidence standard offends, from her arguments it is clear that
Sullivan’s theory is that the substantial evidence standard violates the principles of equal
protection enshrined in the Fifth Amendment’s due process clause. See United States v.
Windsor, 133 S. Ct. 2675, 2695 (2013).
Sullivan did not raise this claim before the district court. Although Sullivan did briefly
aver that the ALJ’s denial of benefits violated her due process rights, her argument in the district
court was that some of the ALJ’s findings were conclusory or lacking a factual basis in violation
of Goldberg v. Kelly, 397 U.S. 254, 260–66 (1970), which held that the due process clause of the
Fourteenth Amendment requires that recipients of government benefits receive an evidentiary
hearing prior to the termination of those benefits. She never argued that the substantial evidence
standard discriminated on the basis of economic status.
Claims raised for the first time on appeal are forfeited. See Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 552 (6th Cir. 2008).
Two main policies justify this general rule. First, the rule eases appellate review
“by having the district court first consider the issue.” Foster v. Barilow, 6 F.3d
405, 409 (6th Cir. 1993). Second, the rule ensures fairness to litigants by
preventing surprise issues from appearing on appeal. See Novosteel SA v. United
States, 284 F.3d 1261, 1274 (Fed. Cir. 2002).
Id. The only exceptions to this rule are in “exceptional cases . . .” or when enforcing the
forfeiture rule would produce a “plain miscarriage of justice.” Id. (citations omitted). Because
Sullivan did not raise her equal protection claim in the district court, we conclude she has
forfeited it on appeal. Nor do we think this is an “exceptional case[]” or that enforcing the
-2-
No. 14-5337, Sullivan v. Comm’r of Soc. Sec.
forfeiture rule here would produce a “plain miscarriage of justice,” id., and Sullivan offers no
argument to the contrary. Accordingly, we decline to review this claim.
Moreover, even assuming Sullivan had not forfeited this claim, she would not be entitled
to relief. The Supreme Court “has held repeatedly that poverty, standing alone is not a suspect
classification” for equal protection purposes. Harris v. McRae, 448 U.S. 297, 323 (1980);
Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 660 (6th Cir. 2008) (“[A] class of less
wealthy individuals is not a suspect class” and thus “does not trigger heightened scrutiny”).
Sullivan advances no reason to depart from this principle.
II.
Next, Sullivan challenges several of the ALJ’s conclusions. We find no error in the
ALJ’s decision.
The ALJ’s decision followed the standard five-step analysis prescribed by the Social
Security Act:
First, plaintiff must demonstrate that she is not currently engaged in “substantial
gainful activity” at the time she seeks disability benefits. [Abbott v. Sullivan,
905 F.2d 918, 923 (6th Cir. 1990)] (citing 20 C.F.R. §§ 404.1520(b) and
416.920(b)(2000)).
Second, plaintiff must show that she suffers from a “severe impairment” in order
to warrant a finding of disability. A “severe impairment” is one which
“significantly limits . . . physical or mental ability to do basic work activities.” Id.
(citing 20 C.F.R. §§ 404.1520(c) and 416.920(c)(2000)).
Third, if plaintiff is not performing substantial gainful activity, has a severe
impairment that is expected to last for at least twelve months, and the impairment
meets a listed impairment, plaintiff is presumed to be disabled regardless of age,
education or work experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d)(2000).
Fourth, if the plaintiff’s impairment does not prevent her from doing her past
relevant work, plaintiff is not disabled.
For the fifth and final step, even if the plaintiff’s impairment does prevent her
from doing her past relevant work, if other work exists in the national economy
that plaintiff can perform, plaintiff is not disabled. Abbott, 905 F.2d at 923.
-3-
No. 14-5337, Sullivan v. Comm’r of Soc. Sec.
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). At the first step, the ALJ
concluded that Sullivan met the insured status requirements of the Social Security Act through
June 30, 2014, and had not engaged in substantial gainful activity since December 1, 2007. At
step two, the ALJ found that Sullivan “had the following severe impairments: coronary artery
disease status post two-vessel coronary artery bypass grafting with benign hypertension, ongoing
tobacco abuse, and obesity (20 CFR 404.1520(c) and 416.920(c)).” At the third step, the ALJ
determined that Sullivan did not meet or equal one of the listed impairments in the regulations.
Next, the ALJ assessed Sullivan’s residual functional capacity (RFC), which is defined as the
“most [a claimant] can still do despite [the claimant’s] limitations.” 20 C.F.R. 404.1545(a)(1).
The ALJ determined that Sullivan
has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except that she may sit 8 hours, stand 2 hours, and walk one hour; she
needs the option to sit and stand, she may occasionally bend, stoop, push, pull,
and reach overhead but never kneel . . . crouch or crawl. She will need to
alternate positions every 35 to 45 minutes and may occasionally be able to grip
with her hands . . . .
In making her RFC determination, the ALJ
[p]lace[d] minimal weight on the . . . opinion of Tullio Emanuele,
M.D.[, Sullivan’s treating physician], who stated that due to her coronary artery
bypass graft surgery, she has not been able to work on jobs which require frequent
lifting. This opinion does not have controlling weight . . . because it was not
consistent with [Dr. Emanuele’s] own medical records. For example, [Sullivan]
exhibited normal signs on her June 2009 visit [to Dr. Emanuele] . . . . July 2010
testing found similar results. In addition, while [Sullivan] has a treating
relationship with Dr. Emanuele since 2007, they have had limited contact with
one another, without visits in 2008 and 2011. Similarly, the limitations [proposed
by Dr. Emanuele] are not specific and only preclude frequent lifting, not
specifying an amount. [Sullivan] quoted Dr. Emanuele in saying she could lift
over 10 pounds. [Sullivan] also stated that she was able to work provided certain
accommodations that when named to the vocational expert, were attainable in
[certain positions]. Because [Sullivan] does not exhibit the extreme exacerbations
in the record that Dr. Emanuele alleged in his medical source statement, his
opinion is not supported by nor is consistent with the overall medical evidence of
record.
-4-
No. 14-5337, Sullivan v. Comm’r of Soc. Sec.
At the fourth step, the ALJ determined that Sullivan was unable to do past relevant work.
At the fifth step, however, the ALJ determined that, based on Sullivan’s age, education, work
experience and RFC, “there are jobs that exist in significant numbers in the national economy
that [Sullivan] can perform.” The ALJ summarized the testimony of a Vocational Expert (VE):
The [VE] testified that . . . [a hypothetical individual with Sullivan’s age,
education, work experience, and RFC] would be able to perform the requirements
of representative occupations such as call out operator . . . [for which there were
2,900 jobs in Kentucky and 180,000 nationwide]. The hypothetical person could
also be a surveillance systems monitor . . . [for which there were 5,000 jobs in
Kentucky and 200,000 nationwide]. Finally, the hypothetical person could
perform the duties of an investigator . . . [for which there were 4,600 jobs in
Kentucky and 211,000 nationwide].
The ALJ thus concluded that Sullivan was not disabled.
When confronted, as we are here, with an appeal under 42 U.S.C. § 405(g), we “must
affirm the [ALJ’s] conclusions absent a determination that the Commissioner has failed to apply
the correct legal standards or has made findings of fact unsupported by substantial evidence in
the record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). Indeed, “[i]f the
[ALJ’s] decision is supported by substantial evidence, it must be affirmed even if the reviewing
court would decide the matter differently, and even if substantial evidence also supports the
opposite conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994) (citations omitted). “Substantial evidence is more than a scintilla of evidence but less than
a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
III.
Sullivan first challenges the ALJ’s RFC determination, arguing that she improperly
discounted the opinion of Dr. Emanuele. We disagree.
-5-
No. 14-5337, Sullivan v. Comm’r of Soc. Sec.
An ALJ should “give more weight to the opinion of a [medical] source who has
examined [the claimant] than to the opinion of a source who has not examined” the claimant.
20 C.F.R. § 404.1527(c)(1).1 Under the so-called “treating physician rule,” the ALJ “‘will’ give
a treating source’s opinion controlling weight if it ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence in [the] case record.’” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting
20 C.F.R. § 404.1527(c)(2)). Along those lines, “‘[i]t is an error to give an opinion controlling
weight simply because it is the opinion of a treating source if it is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the
other substantial evidence in the case record.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009) (quoting Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *2 (July 2, 1996)). If
the opinion of a treating source is not given controlling weight by the ALJ, the ALJ “‘must
apply’ specified factors in determining what weight to give the opinion.” Hensley v. Astrue, 573
F.3d 263, 266–67 (6th Cir. 2009) (quoting 20 C.F.R. § 404.1527(c)(2)). These factors include
“the length of the treatment relationship and the frequency of examination, the nature and extent
of the treatment relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and any specialization of the treating physician.” Blakley, 581 F.3d at 406
(citing 20 C.F.R. § 404.1527(c)(2)). And, if the ALJ gives the treating source’s opinion other-
than-controlling weight, the ALJ must give “‘good reasons’” for having done so. Hensley,
573 F.3d at 267 (citing 20 C.F.R. § 1527(c)(2)).
1
Some of our opinions quoted or cited 20 C.F.R. § 404.1527(d), the previous version of
the C.F.R. That C.F.R. has since been revised, and, for clarity’s sake, we refer to the current
version herein.
-6-
No. 14-5337, Sullivan v. Comm’r of Soc. Sec.
Here, the ALJ declined to give Dr. Emanuele’s opinion controlling weight because his
opinion was not supported by the other evidence in the record. We agree. As the ALJ correctly
noted, Dr. Emanuele’s own records indicated that in 2009 and 2010, Sullivan’s heart tested
normally. In 2010, she denied any chest pain, shortness of breath, dizziness, palpitations,
myalgias, and her heart rate was normal. This court has previously held that it is proper for an
ALJ to give a treating physician’s opinion less-than-controlling weight where a claimant is
“unable to direct this court to any portion of the [treating physician’s] records which support” the
treating physician’s ultimate opinion. Walters, 127 F.3d at 530. In short, Dr. Emanuele’s
opinion is not “well-supported by medically acceptable clinical and laboratory diagnostic
techniques” and is thus not entitled to controlling weight. Blakley, 581 F.3d at 406.
The ALJ also properly considered the frequency of Sullivan’s treating relationship with
Dr. Emanuele, one of the appropriate factors to consider in denying a treating physician’s
opinion controlling weight. Id. The ALJ correctly observed that Sullivan’s treating relationship
with Dr. Emanuele was sporadic—Sullivan did not see Dr. Emanuele in 2008 or 2011.
For these reasons, we conclude that the ALJ did not err in assigning less-than-controlling
weight to Dr. Emanuele’s opinion in making her RFC determination. The ALJ’s determination
that Dr. Emanuele’s opinion was inconsistent with the other evidence in the file was supported
by substantial evidence.
IV.
Next, Sullivan argues that the ALJ did not rely on the VE’s testimony. We disagree.
Sullivan testified before the ALJ that she had trouble gripping objects due to swelling in
her hands. Sullivan asserts that the VE testified that such limitations on gripping would “rule out
all the jobs” and therefore asserts that the VE testified that there were no jobs a hypothetical
-7-
No. 14-5337, Sullivan v. Comm’r of Soc. Sec.
person with Sullivan’s impairments could perform This is not what the record reflects. The
VE’s statement about “all the jobs” was made in the context of describing a specific job: callout
operator. Almost immediately after he gave his answer, that “occasional gripping would rule out
all the jobs,” he amended his testimony, stating “I made a mistake here. The callout operator
could still be performed with occasional gripping.” Accordingly, Sullivan’s characterization of
the VE’s testimony is not supported by the record.
To the contrary, the VE testified that there were a number of jobs widely available in the
local, regional, and national economy that a hypothetical person with Sullivan’s physical
limitations could perform. Specifically, the VE testified that someone with Sullivan’s limitations
could be a callout operator (for which there were 2,900 jobs in Kentucky, and 180,000 in the
national economy), a surveillance systems monitor (for which there were 5,000 jobs in Kentucky
and 200,000 in the national economy), or an investigator (for which there were 4,600 jobs in
Kentucky and 211,000 in the national economy). Thus, the VE’s testimony constituted
substantial evidence to support the ALJ’s finding that Sullivan was capable of performing a
significant number of jobs in the local and national economy because it was based on a
hypothetical question and accurately portrayed Sullivan’s physical limitations. Varley v. Sec’y of
Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
To the extent Sullivan argues that the ALJ erred by finding her testimony not credible
because it was inconsistent with the medical evidence, we disagree. In cases such as this, we
“may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility[,]” as those are issues for the ALJ to decide. Walters, 127 F.3d at 528 (quoting
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Sullivan asserts that the ALJ’s credibility
finding is unsupported because her testimony as to the severity of her impairments was
-8-
No. 14-5337, Sullivan v. Comm’r of Soc. Sec.
corroborated by the affidavit of Judy Hittison, Sullivan’s former employer. Hittison averred,
consistent with Sullivan’s testimony before the ALJ, that Sullivan had problems lifting heavy
objects due to her heart condition, had a memory problem, could not grip, could not stand for
more than fifteen minutes at a time, and could not sit for very long. However, Sullivan did not
submit Hittison’s affidavit to the ALJ; rather, this evidence was submitted for the first time to the
Appeals Council after the ALJ’s decision. We have “repeatedly held that evidence submitted to
the Appeals Council after the ALJ’s decision cannot be considered part of the record for
purposes of substantial evidence review.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).
Accordingly, we decline to review this evidence.
V.
For the foregoing reasons, we affirm.
-9-